LLB Bulletin #03/2016

LLB Bulletin #03/2016





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IN THIS ISSUE BULLETIN 03/2016
1. Latest Highlights
    - Case Highlights
    - ILR Issue 03 of 2016
2. Media Info


LATEST HIGHLIGHTS
CASE HIGHLIGHTS
SIVABALAN POOBALASINGAM v. KUWAIT FINANCE HOUSE (MALAYSIA) BERHAD
INDUSTRIAL COURT, KUALA LUMPUR
JAMHIRAH ALI
AWARD NO. 132 OF 2016 [CASE NO: 7/4-459/13]
12 FEBRUARY 2016
DISMISSAL: Retrenchment - Redundancy - Claimant retrenched - Whether he had been offered alternative employment within the company - Evidence adduced - Whether redundancy had clearly been an excuse to get rid of him
DISMISSAL: Retrenchment - Redundancy - Claimant retrenched - Whether the claimant had possessed the required experience and skill set to spearhead the new business plan with regard to sukuk funds - Evidence adduced - Effect of - Whether the claimant's removal had been an excuse to replace him with COW1's candidate of choice - Whether that had shown mala fide intent on the part of the company
DISMISSAL: Retrenchment - Redundancy - Claimant retrenched - Whether the claimant's role in the company had ceased to exist - Evidence adduced - Claimant's functions and duties transferred to another - Effect of - Whether he had been surplus to the company's needs - Factors to consider - Company's actions towards him - Whether it had been fair
DISMISSAL: Retrenchment - Redundancy - Claimant retrenched - Whether the retrenchment had been carried out bona fide - Factors to consider - Evidence adduced by the company - Effect of - Whether the claimant's replacement had been better suited for the job - Claimant's skill set - Whether the claimant had been given the opportunity to handle the sukuk funds - What the company should have done
EVIDENCE: Burden of proof - Whether discharged by the company - Factors to consider
INDUSTRIAL COURT: Remedies - Compensation - Claimant seeking EPF payments - Whether ought to be allowed - Factors to consider - Determination of quantum
INDUSTRIAL COURT: Remedies - Compensation in lieu of reinstatement - Whether should include punitive compensation - Factors to consider - What would be a reasonable amount to award

NORBERT FINGER v. SANTINA RESORT (TRG) SDN BHD
INDUSTRIAL COURT, KUALA LUMPUR
ANNA NG FUI CHOO
AWARD NO. 157 OF 2016 [CASE NO: 3(15)/4-1211/13]
19 FEBRUARY 2016
CONTRACT OF EMPLOYMENT: Terms and conditions - Allowances - Claimant making claims for his car instalment payments, his housing loan, his property rental, air tickets and Director's fees - Whether he had been entitled to them - Factors to consider - Perusal of his contract of employment - Effect of
CONTRACT OF EMPLOYMENT: Terms and conditions - Notice of termination - Whether the claimant had been terminated by the company - Claimant alleging that he had still been an employee of the company - Company issuing him a termination notice - Perusal of
DISMISSAL: Misconduct - Claimant issuing a Letter of Demand and a Winding-Up notice for his outstanding salaries to the company - Whether it had constituted misconduct - Whether proven by the company - Factors to consider - Evidence adduced - Effect of - Whether it had constituted a grave and serious misconduct - Whether he had been in breach of his fiduciary duties to the company - Whether his misconduct had been serious enough to justify his dismissal - Perusal of the claimant's contract of employment - Effect of - Whether dismissal without just cause and excuse
EVIDENCE: Adverse inference - Non-production of a material witness - Company failing to call Ahmad Sobri - Whether the burden had been on the company to call him as a witness - Factors to consider - Effect of - Whether an adverse inference ought to be drawn against the company - Evidence Act 1950, ss. 101 & 114(g)
EVIDENCE: Witness - Credibility - Whether the claimant and CLW1 had been credible witnesses - Factors to consider
INDUSTRIAL COURT: Jurisdiction - Whether the Industrial Court had the jurisdiction to hear this matter - Factors to consider - Whether the claimant had been terminated by the company - Effect of
INDUSTRIAL COURT: Procedure - Action - Whether the claimant had filed his claims for outstanding salaries in the proper forum - Factors to consider - Effect of - What he should have done
LATEST CASES (ILR Issue 3 of 2016)
Award Parties Citation Links
5/2016 Lee Chee Shang v. Jabil Circuit Sdn Bhd
[Case No: 18/4-832/11]
[2016] 1 ILR 457 cljlaw
labourlaw
105/2016 Augustin Simon v. Bank Pertanian Malaysia Berhad (AGROBANK)
[Case No: 17/4-1021/14]
[2016] 1 ILR 481 cljlaw
labourlaw
109/2016 Yusniza Yusof lwn. Yee Chan Loong (CL Aluminium)
[No. Kes: 12/4-418/15]
[2016] 1 ILR 493 cljlaw
labourlaw
110/2016 Azhar Abdul Mutalib & Yang Lain lwn. Polymatech (Malaysia) Sdn Bhd
[Nos. Kes: 2/4-1205/13, 15/4-1352/13 & 25/4-1266/13]
[2016] 1 ILR 499 cljlaw
labourlaw
119/2016 Amir Osman & Ors v. Meor Hamzah (M) Sdn Bhd
[Case No: 3/4-1010/14]
[2016] 1 ILR 508 cljlaw
labourlaw
124/2016 John Joseph Fernandez v. Mestari Adjusters Sdn Bhd
[Case No: 17/4-168/15]
[2016] 1 ILR 521 cljlaw
labourlaw
127/2016 Mohd Syahini Hassan lwn. Media Prima Sdn Bhd/Primeworks Studios Sdn Bhd
[No. Kes: 21(26)(15)/4-696/14]
[2016] 1 ILR 537 cljlaw
labourlaw
132/2016 Sivabalan Poobalasingam v. Kuwait Finance House (Malaysia) Berhad
[Case No: 7/4-459/13]
[2016] 1 ILR 542 cljlaw
labourlaw
138/2016 Rika Novia Zayardin lwn. Koperasi Kakitangan Petronas Berhad (KOPETRO)
[No. Kes: 6(23)/4-1796/12]
[2016] 1 ILR 563 cljlaw
labourlaw
140/2016 Amir Riduan Zakaria & Anor v. Pokka Ace (M) Sdn Bhd
[Case No: 22(27)/4-343/12]
[2016] 1 ILR 577 cljlaw
labourlaw
142/2016 Ahmad Mohd Khairuddin lwn. Global Knowledge Network (M) Sdn Bhd
[No. Kes: 2(25)/4-613/14]
[2016] 1 ILR 593 cljlaw
labourlaw
157/2016 Norbert Finger v. Santina Resort (TRG) Sdn Bhd
[Case No: 3(15)/4-1211/13]
[2016] 1 ILR 596 cljlaw
labourlaw
186/2016 Ng Bee Yoong v. Capital Development Sdn Bhd
[Case No: 4(25)/4-70/2012]
[2016] 1 ILR 609 cljlaw
labourlaw
187/2016 Tan Beng Hoong v. Legacy Delight Sdn Bhd/Pacific Regency Hotel Suites
[Case No: 4(25)(4)/4-258/13]
[2016] 1 ILR 645 cljlaw
labourlaw
To Subject Index
MEDIA INFO
Articles
To motivate, you have to be motivated first (New Straits Times, Malaysia)
I have done numerous "motivational programs" for organisations and surprisingly, 95% of them are for low-level staff; rarely, if ever, for managers. And when asked, most organisations reply by saying, "These low-level staff are demotivated and we think that a motivational course will help".
Business/Management Skills
Good attracts good (The Star, Malaysia)
Growth and profit isn't everything in business. Good managers know that good attract good. Take care of your staff and customers, and your business will grow.
Human Resource
Cuepacs wants relook at cost-cutting (The Star, Malaysia)
The country's civil servants union has urged the Government to re-examine the stricter controls on overtime and other measures introduced to optimise public expenditure, saying it could hit lower-ranking staff badly. Cuepacs president Datuk Azih Muda said many lower ranking public servants depended on their overtime to supplement their basic salaries in order to make end meet in view of the rising cost of living.
Opinion
Leading positive change (New Straits Times, Malaysia)
Leaders today can no longer wait for opportunities to come before they start their improvement initiatives. Every leader must start at exactly where he or she is and begin to create positive change for the company. They can explore change initiatives within the company and outside. In the external environment, they need to be more discerning about customer needs, competitors, business opportunities and industry changes, and their impact on the company.
Service
Giving your customers more (The Star, Malaysia)
When customers demand more, you could oblige by raising prices or getting more investment. But whatever you do, the key thing to remember is this: Never risk your entire business by expanding too quickly and without a proper financial plan.
Tips
Tips to effective time management (New Straits Times, Malaysia)
As busy working executives with families, none of us are strangers to the feeling of not having enough time. Not enough time to finish our work, not enough time to spend with our families, not enough time to get all our errands done, not enough time to go on vacation... and the list goes on. "No time-lah" seem to be such a common catchphrase that we hear it everywhere.
Working Smart
10 traits of confident female leaders (The Star, Malaysia)
We all know confident women and confident female leaders. The light up the room when they arrive and they always leave a positive impression. They seem to have an indefinable "something" that makes them special, and perhaps even inspiring. Very little stands in the way of emulating the confidence of those female leaders who inspire you. And it's unlikely they were born so confident. It took mindfulness and practice, so if they can do it, so can you.
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